The First Amendment Guide to the Second Amendment

Back in 1995, the Tennessee Law Review published a symposium issue on the Second Amendment and firearms policy. That symposium was probably the most influential law review symposium ever published on the topic. (More on that issue, below.) This year, the Tennessee Law Review is doing another Second Amendment symposium. My contribution to the forthcoming issue is The First Amendment Guide to the Second Amendment.

As the article explains, post-Heller courts have frequently looked to the First Amendment for guidance on Second Amendment questions. This is sensible, because since the Supreme Court began taking the First Amendment seriously about 75 years ago, a rich body of precedent has been developed. The First and Second Amendments both safeguard natural, pre-existing human rights, whereas Amendments 4-8 are mainly controls on particular government processes, and Amendments 9-10 are interpretive rules.

Part I of the article explains how the Supreme Court in Heller and McDonald used First Amendment tools and analogies to help resolve Second Amendment issues. This was consistent with several earlier Supreme Court cases, which treated the First and Second Amendments in pari materia.

In Part III, I argue that the First and Second Amendments share several common interpretive principles. These are:

The Amendment Is Not Limited to Its Core. First Amendment free speech/press is not only about politics, and the Second Amendment is not only about self-defense.

The First and Second Amendments Have Synecdoches. “Press” means more than just printing presses, and “arms” includes more than just weapons.

Rights That Are Not Expressly Stated May Be Inferred from Other Rights—Examples Include the Right of Association and the Right of Self-Defense. Both Amendments protect non-textual rights whose existence is readily inferred from the text.

Not All Original Practices Are Per Se Constitutional Today. Laws against blasphemy or seditious libel are clear examples in the First Amendment context. They warn us to not accept uncritically every possible municipal gun law from the Founding Era.

Both Amendments Accommodate Technological Change. The First Amendment applies to the modern press (e.g., television and blogs), and the Second Amendment applies to modern firearms and accessories.

Both Amendments Aim for the Preservation or Restoration of Ordered Liberty and Civic Virtue. They seek to cultivate virtuous, responsible, and self-controlled citizens who will use their rights to improve the moral character of themselves and of the public, and who will preserve constitutionally ordered liberty.

Guns and newspapers are not like movies of men having sex with sheep. A point that is perhaps more obvious to the general public than to legal academia.

Part IV examines the application of particular First Amendment doctrines to the Second Amendment. Some of these doctrines are an easy fit: Courts should strike legislation whose purpose was to suppress the exercise of a constitutional right. Courts should be especially vigilant against vague laws which may chill the exercise of rights. “Less restrictive means” and “overbreadth” should be used when assessing the constitutionality of particular restriction. Minors have fewer rights than adults, but the minors may not be categorically prohibited from exercising First or Second Amendment rights.

The most notable First Amendment doctrine which does not transpose to the Second Amendment is the rule against prior restraints. Heller has clearly stated that laws prohibiting gun possession by convicted felons are presumptively constitutional. In the First Amendment, this would be an invalid prior restraint. (E.g., a law stating that someone convicted of libel, obscenity, or of revealing troop movements in wartime could not write newspaper articles in the future.) In the Second Amendment, this is not unconstitutional, according to modern precedent.

Instead, courts should follow the teachings of the Supreme Court cases that have allowed limited prior restraints on some forms of speech: the restraint must last no longer than necessary; there must be a speedy process for the initial decision and for review; and the final determination must be made by a neutral decision-maker, preferably a court under a de novo standard.

The foreword to the Tennessee symposium is written by Glenn Reynolds: The Second Amendment as Ordinary Constitutional Law. His essay examines the intellectual re-discovery of the Second Amendment by the legal academy and the courts during the late 20th century, following the Burger Court period of ignoring the right to arms.

Finally, there was Glenn Reynolds’s A Critical Guide to the Second Amendment. Reynolds summarized the “standard model” that had become the norm among most (although not all) Second Amendment scholars; the standard model would later be adopted by Heller: The Second Amendment guarantees the right of the individual to own and carry firearms, including handguns. The right aims to promote the militia, but the right is not dependent on the militia. Some non-prohibitory regulations are constitutional. (Reynolds offered his own list of such controls, but whether he was right about any particular item on the list is less important than his general point that the Second Amendment does not forbid all gun control.)

Also in the 1995 issue was an article by Clayton Cramer and me, “Shall Issue”: The New Wave of Concealed Handgun Permit Laws. We did a before/after study of states which had enacted Right to Carry laws, and found that there was usually a notable decline in homicide, compared to national rates. However, our simple study has been supplanted by much more sophisticated studies after 1995.

David Kopel is Research Director, Independence Institute, Denver; Associate Policy Analyst, Cato Institute, D.C; and Adjunct professor, Denver University, Sturm College of Law. He is author of 17 books and 100 scholarly journal articles. Kopel is an NRA-certified safety instructor. The Independence Institute has received NRA contributions.